Discretion in the Criminal Justice System

by

Shawn D. Bushway, Brian Forst

• LAST REVIEWED: 02 March 2011
• LAST MODIFIED: 02 March 2011
• DOI: 10.1093/obo/9780195396607-0083

Introduction

Discretion is the latitude granted officials to act under a formal set of rules and in a public capacity. The rules themselves are usually the result of discretion by other actors in the criminal justice system, such as the legislature, which has created the criminal code for the jurisdiction. However, even the most detailed rules allow for discretion, and it is possible that this discretion will allow actors subject to the rules to countermand or contradict the rules. The best example of this type of contradiction comes in the case of mandatory sentences, where legislative intent is frequently averted through the use of prosecutorial discretion. Even if executed “within” the rules, however, discretion can lead directly to disparity, where “like” cases are treated differently. In the case of sentencing, disparity involves the application of different punishments to cases that appear to be identical on the merits, or alternatively, the application of same punishment to cases that appear different. It is common to focus on disparity along a particular dimension, such as race. Disparity in this framework takes on a different meaning, and refers instead to the fact that individuals with a given characteristic are over- (or under-) represented in the criminal justice system relative to their representation either in the population or in the commission of a type of crime. Racial disparity is further decomposed into two types: warranted or unwarranted. Warranted disparity is the variation in outcomes due to legally relevant factors such as criminal history, crime type, and crime severity, which are correlated with race. Unwarranted disparity is the variation in outcomes that can be reasonably identified as being the sole result of race or other extralegal factors (e.g., gender) after all legally mandated sentencing factors are taken into account. This framework crystallizes the importance of rules in the empirical analysis of discretion. Any analysis that does not fully account for the legally mandated process (and factors) runs the risk of mistakenly labeling disparity as unwarranted when, in fact, it may be “warranted” according to the rules of the system. But it also raises the specter of too much deference to the rules, especially in cases where the rules themselves have the potential to create disparity, as in the case of federal rules that call for tougher sanctions for dealing in “crack” cocaine rather than powder cocaine. For both of these reasons, any discussion of discretion must start from a review of the goals of the system and an understanding of how these goals are reflected in the formal rules of a system with many moving parts.

General Overviews

In their account of the American Bar Foundation survey of 1953–1969 (Ohlin and Remington 1993), Editors Lloyd Ohlin and Frank Remington highlight the central importance of discretion in the functioning of the criminal justice system (CJS). They describe the CJS as a complicated set of interdependent actors who act on cases involving individuals accused of crimes. Samuel Walker 1992 adds that the term system is perhaps misleading, because the police, courts, and corrections are largely independent of one another, although the actions of each set of actors clearly have an impact on the others. The President’s Commission on Law Enforcement and Administration of Justice and Katzenbach 1967 elaborated on the American Bar Foundation survey by describing the complex web of relationships among these actors. For example, while judges can exercise discretion only in cases involving arrested offenders that prosecutors charge with crimes, sentencing policies and practices influence the actions of police and prosecutors. Because of the salience of sentencing policy to the exercise of discretion generally, sentencing policy warrants treatment as a driver of discretion. The National Research Council’s 1983, a landmark review of sentencing, offers a first systematic assessment of sentencing goals, policies, and the disparity and discrimination that can follow a lack of consensus on the fundamental purposes of sentencing. Two other classics on discretion are also included here: First, Dworkin 1977 treatment of the subject, which distinguishes between the routine exercise of discretion and the more controversial use of discretion to alter policies viewed as misguided; and second, Gottfredson and Gottfredson 1988, a book on discretion, which offers a thoughtful account of the essential aspects of discretion and how it can be used effectively to improve the functioning of the criminal justice system.

• Dworkin, Ronald. 1977. Taking rights seriously. Cambridge, MA: Harvard Univ. Press.

  This book is a legal-theory classic on discretion. It distinguishes discretion from ordinary personal decision making, not accountable to a set of standards or a higher authority (p. 31). Dworkin distinguishes further between “weak” (ordinary judgment) and “strong” discretion (pp. 31–32), which draws on principles and is invoked under a duty that transcends normally applicable technical rules, relating to an “ultimate social rule or set of social rules” (p. 69).

• Gottfredson, Michael R., and Don M. Gottfredson. 1988. Decision making in criminal justice: Toward the rational exercise of discretion. New York: Plenum.

  An excellent book-length treatment of the decisions that create the flowchart in President’s Commission on Law Enforcement and Administration of Justice and Katzenbach 1967, including the decision by the victim to report the crime, an often overlooked part of the process. This text is probably best for a graduate-level class.

• National Research Council 1983. “Sentencing practices and the sentencing reform movement.” In Research on sentencing: The search for reform. Vol. 1. Edited by Alfred Blumstein, 39–68. Washington, DC: National Academies.

  This is the introduction to the landmark National Research Council volume on sentencing. The first chapter is a very readable discussion of the actors in the system, including the legislatures. The chapter is particularly noteworthy for its discussion of the goals of the system, including justice, fairness, and crime control/prevention, and the changing nature of these goals. Recommended for all readers.

• Ohlin, Lloyd E., and Frank J. Remington. 1993. Discretion in criminal justice: The tension between individualization and uniformity. SUNY Series in New Directions in Criminal Justice Studies. Albany: State Univ. of New York Press.

  Based on the landmark 1957 American Bar Foundation survey, this anthology gives a systemic view of the criminal justice system, in terms of the decisions made by police, prosecutors, judges, and corrections officials: practitioners prefer flexibility to rules; discretion is exercised mostly at the lowest levels of the organization (especially in policing and prosecution) and with limited transparency; and attempts to control decisions at one stage affect decisions made by agents at other stages of the process, in a hydraulic manner.

• President’s Commission on Law Enforcement and Administration of Justice and Nicholas de B. Katzenbach. 1967. The challenge of crime in a free society. Washington, DC: Government Printing Office.

  This is an important historical document notable for its inclusion of the now-iconic “criminal justice flowchart” (pp. 8–9), which highlights the complexity of the system and the process of selection by which ever fewer defendants proceed farther into the system. The document is also notable for its consideration of police, courts, and corrections (chapters 4, 5, and 6) in the context of crime control. An updated version of the chart can be found on the Bureau of Justice Statistics website.

• Walker, Samuel. 1992. Origins of the contemporary criminal justice paradigm: The American Bar Foundation survey, 1953–1969. Justice Quarterly 9.1: 47–76.

  DOI: 10.1080/07418829200091251

  Although somewhat unconventional in its historical approach, the article does a good job of describing the evolution of the concept of the “criminal justice system” and the role of discretion within that system. The paper is very readable and should generate much discussion about the importance of paradigms in a graduate or undergraduate class.